Divorce and the Marital Home

Under Texas law, all property obtained during a marriage is presumed to be community property that belongs to both spouses. As a result, if the marital home was purchased during the marriage, it is community property, unless one party can prove otherwise. While all community property is subject to equitable distribution, deciding what to do with the marital home can be an emotionally charged issue that is difficult to negotiate. If you plan to seek a divorce and own a home with your spouse, you should consult an experienced attorney to determine which method of dealing with the property is in your best interest. The Dallas divorce lawyers at the McClure Law Group are mindful of the sensitive nature of issues related to divorce and the marital home, and we can help you determine which option works best for you.

After you decide to divorce, there are important factors to weigh if you are considering moving out of your marital home prior to the ultimate determination of what should happen to the home once the divorce is final. If you leave the home, it may be harder for you to move back in or set forth an argument that you should be granted possession of the home in the divorce. Additionally, moving out will not alleviate any financial obligations that you have in the home. Thus, you may still be required to pay a portion of any mortgage, taxes, or other debts on the home, in addition to paying for your new living space. You will also likely be required to leave without the furniture of the marital home, and you will need to trust your estranged spouse to properly care for the home and personal property in it.

Moreover, if your divorce involves a custody dispute, moving out of the marital home may affect the judge’s decision in determining custody of the children. A judge considers what is in the best interest of the children, and a major contributing factor is maintaining stability and consistency in the children’s lives. This means that a judge may grant primary custody to the parent who remains in the marital home. If you intend to seek primary custody of your children, it may be in your best interest to remain in the marital home at least until a temporary custody order is issued.

Practically speaking, it is not always possible to remain in the marital home while waiting for the court to determine how to divide the marital assets. Regardless of whether both you and your spouse are able to remain in the house during the pendency of the divorce, once the divorce is final, one of you will need to move out. In some cases, the parties are able to come to a joint decision without court intervention. This is not always possible, however, and the court may need to divide the equity in the home in a manner that it deems fair.

While it is possible that the court will grant sole possession to one party, without granting the other party any equitable proceeds from the marital home, courts generally divide the value of the home in some way. In some cases, the court will order the parties to sell the marital home and split the proceeds from the sale in a division the court determines to be equitable. At other times, the court will grant one spouse possession of the home but order the spouse staying in the home to buy out the spouse who is leaving. In either situation, it is in the best interest of both parties to obtain a neutral appraiser to objectively assess the value of the home. An objective appraisal can prevent further discord over the true value of the home and allow both parties to feel secure that they are not being shortchanged. In cases in which one spouse retains possession of the home, it is important to ensure that the necessary loan documents and deeds are filed to remove any obligations or rights with respect to the departing spouse.

Determining how to resolve issues related to divorce and the marital home can be an emotional and complicated decision. If you intend to seek a divorce, you should consult a divorce attorney to discuss your options for keeping or selling your marital home. The McClure Law Group has the skills and experience to advise you on your options regarding your marital home and will work to ensure that you are granted a fair share of the marital assets. Our attorneys also represent people in other cities in Dallas, Collin, Grayson, Denton, Tarrant, and Rockwall Counties. We can be reached at 214.692.8200 or via our online form to set up a consultation.